One duty of the Medical Council of Hong Kong is to protect the public from dysfunctional doctors, who, by reason of their misconduct, poor performance or ill health, put the public at risk of harm.
This duty is of paramount importance because the council is the only statutory body in Hong Kong with the power to suspend or remove a doctor’s right to practise medicine. A doctor admitting malpractice in civil proceedings can continue to practise unless the council suspends or removes the doctor’s practising right.
The Medical Council exercises its power to suspend or remove a doctor’s right to practise through its complaints and disciplinary mechanism.
Under this mechanism, if a doctor is found guilty of “misconduct in a professional respect”, and depending on the seriousness of the misconduct, the council may subject the doctor to a public warning or reprimand, suspension of registration for a period of time, or removal from the register.
If the Medical Council fails to handle patient complaints in a timely manner, then apparently it is not doing a good job in its duty to protect the public.
Protection delayed is protection denied. A one-year delay in handling complaints, for example, means putting the public at risk of dysfunctional doctors for a year.
In other words, apart from the issue of fairness to the complainants and doctors concerned, inordinate delay in dealing with complaints poses a serious patient safety issue.
The latest projection says that the delay in processing a complaint can be as long as 72 months. This indicates not only that the current complaints mechanism is not working but also that the council is failing in its duty to protect the public in tolerating such delays.
It is appropriate therefore that a tripartite platform involving all stakeholders has recently been established to review systemically the operations of the council. Reform is long overdue indeed.
To secure meaningful reform and better protect the public, we have to stress that the capacity to handle complaints timely is only one of many aspects affecting the effectiveness of the council’s complaints mechanism.
If there are defects in other aspects of the mechanism, increasing speed in handling complaints alone will not necessarily increase the mechanism’s overall effectiveness in protecting the public.
Efficiency and effectiveness are distinct. Therefore, the platform has to undertake a thorough review of the council’s complaints and disciplinary mechanism. Problems inside the existing mechanism are multifold. Reform emphasis should not be focused mainly on speeding up the handling of complaints.
The first problem has to do with the phrase “misconduct in a professional respect”.
Since the council’s complaints and disciplinary mechanism is founded on this phrase, it is vital to have a clear understanding of what kinds of conduct amount to misconduct and what degree of seriousness warrants which type of disciplinary sanction.
Unless the nature of different kinds of misconduct and the thresholds for different disciplinary sanctions are well defined, disciplinary decisions on misconduct risk being inconsistent and being unfair to some doctors and some complainants.
One likely consequence of inconsistency and unfairness is inappropriate leniency in some cases, resulting in a failure to provide adequate protection for the public.
For its guidance on what professional misconduct is, the Medical Council refers the public and doctors to its Code of Professional Conduct.
The standards of conduct expected of doctors are laid out in the code in very general terms only.
The code does not say how serious a departure from its standards has to be for a doctor to be considered to have committed misconduct.
In addition to unspecificity, a more fundamental issue with the code is its incompleteness. In 2014, according to the Medical Council’s yearbook, more than 40 percent of the complaints taken up by the council were of the nature of substandard clinical practice, such as unsatisfactory results of treatment/surgery and inappropriate prescription of drugs.
These were categorized as “disregard of professional responsibility to patients”. Surprisingly, however, there is no reference in the code to clinical practice under “professional responsibility to patients” whatsoever.
From the perspective of the general public, there also seems to be no guidance on the imposition of sanctions. In view of such obscurities, questions arise as to how far disciplinary decisions are made based on consistent and well-defined criteria.
The second problem with the complaints and disciplinary mechanism relates to the hurdle of lodging a complaint against a doctor with the council.
The complaints mechanism’s function of protection will be initiated only after a complaint is accepted. If the mechanism itself poses an undue barrier to the lodging of a complaint, its protective function will to that extent be undermined.
The council says whether a complaint is accepted depends on the evidence provided by the complainant. In other words, it is the complainant’s responsibility to assemble the necessary evidence against a doctor and to convince the council that misconduct has occurred.
In adopting this approach, it seems the Council takes no account of the fact that gathering relevant evidence in this regard requires considerable expertise and is in most instances beyond an ordinary citizen.
Nor does the Council appear to appreciate the difficulties confronting an ordinary citizen in obtaining medical-related evidence.
For the general public, the hurdle for lodging a complaint with the council is thus disproportionately high.
We are concerned how many genuine misconduct cases might have been lost to the complaints mechanism over the years because the evidence provided by complainants is deemed irrelevant or insufficient or because aggrieved patients have simply been discouraged by the system from the outset, and how much patient risk this loss has resulted in.
A third problem concerning the complaints and disciplinary mechanism is about the decision-making process on accepting a complaint for formal inquiry and adjudication by the council.
For a complaint to be formally taken on for full inquiry, a two-stage filtering process is involved — the screening stage and the preliminary investigation committee (PIC) stage.
The functions and the legal approaches to decision-making of these two stages are different.
The function of the screening stage is to screen out complaints that are frivolous or groundless; the focus is not on whether the complaint can eventually establish a case of misconduct. The legal approach of this stage is: a complaint should normally proceed to the PIC stage unless it is frivolous or groundless.
For the PIC stage, the function is to filter out complaints that have no real prospect of being established. The legal approach here is: a complaint ought to be referred to the council for full inquiry if it has a real prospect of being established (i.e., if the prima facie evidence supports the case going forward).
At both the screening and the PIC stages, no attempt is to be made to assess whether the available evidence can eventually substantiate the complaint or to resolve conflicts of evidence because formal inquiry into the complaint has yet to start.
Given the pivotal role of the two-stage filtering process in determining whether a complaint is “qualified” for inquiry, it is shocking that the Medical Council admitted in a 2015 judicial review that it had adopted a wrong legal approach at the screening stage.
It admitted that an attempt was made to resolve conflicts of evidence at the screening stage when deciding whether a complaint should proceed to the PIC stage.
There is also evidence in the related testimony that the council made the same mistake at the PIC stage (although the PIC stage was not the subject of the judicial review).
It seems that the council was rather confused as to how to discharge the duties required of it by law. The judge of the judicial review commented that “[t]here … appears to be a lack of appreciation of the precise role and functions by persons designated to handle complaints which could be due to inadequate training and supervision”.
Given the confused and mistaken legal approach adopted, rendering the two-stage filtering process a very high threshold for accepting a complaint, we are concerned how many complaints might have been dismissed over the years by the council that should not have been, and as a result of which, how many doctors who present a risk to patients might have not been dealt with who should have been.
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